2005 PLP 911 (PTD)

Messrs Colony Textile Mils Limited, Petitioner herein, has filed this Petition seeking basically the following relief:-- (a) That this Honourable Court may be pleased to declare that the Notification S.R.O.Nil(I)/99, amending or superseding Notification S.R.O. No.454(I)/1996, dated 13-6-1996, has no application to the consignment of the petitioner in question and quash the impugned order of Customs Authorities, dated 23-9-1999 (Annexure P/7 ) demanding central excise duty at 15% ad valorem and direct the respondent No.2 to release the consignment on payment of sales tax @ 15% ad valorem and no excise duty be levied; (b) direct the respondent No.2 to collect from the Petitioner only Rs.13,25,699.00 on account of sales tax and Rs.5,08,184.00 on account of withholding tax (total amounting to Rs.18,33,883.00) to release the goods consignment of the Petitioner in question, which the petitioner is liable to pay under the Notification S.R.O. 454(I)/96, dated 13-6-1996, and direct the respondents to refrain from charging the following additional amounts on account of imposition of 15% central excise duty:-- Excise Duty Rs.13,25,699.00 Sales Tax Rs. 1,98,854.00 Withholding Tax Rs. 76,228.00 Total Rs.16,00,781.00 And further be pleased to direct the Petitioner to furnish bank guarantee in the sum of Rs.16,00,781.00 with the Nazir of this Honourable Court for the immediate release of goods during the pendency of this petition upon which this Honourable Court may graciously be pleased to release the consignment of the petitioner. After filing of this petition, the petitioner deposited an amount of Rs.16,00,781 with the Customs Department to get their goods released to avoid further demurrage on them. The validity of S.R.O. Nil(I)/99, dated 16-9-1999 amending or superseding S.R.O. No.454(I)/96, dated 13-6-1996 was considered by this Court in the case of Kohinoor Textile Mills Limited v. Federation of Pakistan (C.P. No.D-1582 of 1999) and by judgment, dated 13-12-1999 the Court held that section 31-A of the Customs Act, 1969, cannot be extended to Central Excise Duty as there is no comparable provision in the Central Excise Act, 1944 and that the Fifth Proviso to Rule 9 of the Central Excise Rules, 1944 does not alter the position i.e. that it cannot in any way be interpreted to take away the vested rights of a person. Mr. Saeed submits that this petition may also be allowed in the same terms. However, Mr. Raja Iqbal, learned counsel for Respondents Nos.2 and 3 opposed the grant of the Petition and showed us a copy of the order of the Hon ble Supreme Court of Pakistan, dated 7-7-2000 wherein the Supreme Court has been pleased to grant leave to appeal against the aforesaid judgment. It is an established law that one Division Bench of a High Court is bound by the judgment of another Division Bench passed by the same Court and that the judgment of a High Court is good law until it is reversed by the Hon ble Supreme Court of Pakistan. The copy of CPLA No. 97-K of 2000 produced by Mr. Raja Iqbal does not show that the judgment of this Court in C.P. No. D-1582 of 1999 has been reversed. Accordingly, this petition is allowed and it is held that petitioner is entitled to the benefit of S.R.O. 454(I)/96, dated 13-6-1996 and is not liable to pay Central Excise Duty under S.R.O. Nil(I)/99, dated 16-9-1999. Mr. Saeed, however, submits that the petitioner shall not claim refund of the sum of Rs.16,00,781 deposited with the Respondents until the decision of the Supreme Court in the case of Collector of Customs v. Kohinoor Textile Mills and others i.e. CPLA No.97-K of 2000 and other similar petitions on the same point. The petition stands disposed of in the above terms. S.A.K./C-21/K Petition disposed of.